New Plans for Title IX - Changes in the rules governing how institutions handle student sexual assault and harassment cases are in the works. How ...
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PAID FOR AND
CREATED BY
New Plans for Title IX
Changes in the rules governing how institutions handle student
sexual assault and harassment cases are in the works. How might
colleges respond in the interim?
In March, the Biden Administration structures to comply with rules created JAMS currently has on its panel over
issued an executive order signaling by Betsy DeVos, the Secretary of 60 legal professionals with extensive
changes in rules governing how Education under former President experience who have been trained to
colleges deal with sexual misconduct, Donald Trump, Biden’s plans to re- hear Title IX cases, along with expe-
discrimination, and harassment on work Title IX yet again have left many rienced associates who support their
campus. The order calls on the De- administrators reeling. Once again, work.
partment of Education and the Office they’ll likely have to change how they
for Civil Rights to “review all existing proceed with on-campus hearings. The Biden review, which will even-
regulations” within Title IX, the feder- tually include public hearings and
al civil rights law that protects college Title IX officers are now confronted the release of a “Q-and-A”-formatted
students from sex-based discrimination with a pressing question: As a lengthy document covering which current
at any institution that receives federal review process continues, what rules Title IX rules the federal government
dollars, and then offer “new guidance” should colleges follow in order to han- will enforce and which it will change,
on how the law should be reworked. dle sensitive cases that often involve will likely take 18 months or longer—
allegations of rape and sexual assault? meaning institutions will have to wait
Though Title IX officers across many a good while for fresh guidance. “Col-
institutions have applauded the pros- “The law is the law, and right now the leges don’t have the luxury of putting
pect of emerging new rules that aim law is the DeVos regulations,” says their Title IX cases on hold until they
to be fairer to those who allege sexual Ignazio Ruvolo, a former California receive such guidance, or of ignoring
misconduct by other students, some Court of Appeal justice who now the DeVos regs. The timeline is too
have also let out the equivalent of a serves as a hearing officer, mediator, long,” Ruvolo says.
sigh. Coming just eight months after and arbitrator--or “neutral”--for
colleges had worked to re-engineer JAMS, the largest private provider So, what can administrators do in the
their Title IX policies and hearings of alternative dispute resolution interim to make sure their cases are
services worldwide.
handled fairly? For one thing, Ruvolo cases must now include hearings at pel colleges to act responsibly. Many
says, colleges can create policies on which both complainants and respon- respondents who believe they have
their own, with an eye toward making dents are present—making impartial been denied due process have filed civil
hearings fairer to both sides, even as and solid hearings even more impera- lawsuits against colleges. Nearly 60
they stay within the DeVos rules. For tive for colleges. civil lawsuits regarding Title IX case
example, under the current regula- outcomes were filed against institutions
tions, colleges are more limited as “Most of the colleges I’ve worked in 2020. Such legal battles can become
to which cases they can hear, includ- with have new policies that require very expensive for colleges, which have
ing ones that originate off-campus. advisors not to intimidate or harass contended with more and more litiga-
Some institutions have managed to witnesses,” Ruvolo says. “The DeVos tion in recent years.
expand their purview, while awaiting regulations do not speak to the
potential new rules that could grant quality of the tone of the hearings,” The number of reported forcible
colleges wider jurisdiction over such leaving it up to institutions to create sex crimes on campus has more than
cases. rules that protect parties and doubled in the past decade, according
witnesses. to the National Center on Education
Also, under the current rules, both Statistics. During the same period,
sides in sexual misconduct cases Besides being required to serve the lawsuits made by students against
have the right to avail themselves cause of justice for complainants, col- institutions for what they consider to
of an advisor, often an attorney, to leges need to adjudicate Title IX cases be unfair Title IX proceedings, and the
cross-examine those accused of sexual fairly while ensuring that respondents numbers of institutions that are being
misconduct (the “respondents”) and are also granted due process of law. investigated by the federal government
those alleging sexual misconduct Young lives are frequently upended by for possibly mishandling their Title IX
(“complainants”). Many administra- Title IX cases and the circumstances cases, have followed similar upward tra-
tors and activists worry that com- that have led to them. It is critical that jectories. (Civil lawsuits related to Title
plainants will be traumatized while colleges keep in mind the extremely IX declined last year, possibly due to
giving testimony. high stakes students face. the locking down of many campuses.)
The DeVos rules purported to even Colleges face their own risks. Legal Precisely because they could face inves-
the playing field for respondents. All and financial threats exist that com- tigations or lawsuits, institutions might
refrain from any guesswork about the American colleges and universities administrators and faculty. Using an
Biden regulations-to-come, or about during the past decade, including many independent resource instead frees
when they might become law. Title IX cases, earning a reputation campus personnel from such obliga-
for fairness and independence that has tions, allowing them to spend their
become the industry standard. time educating and helping students in
“Your guess is as good as mine ways that are more consistent with their
about what changes the new “We at JAMS believe an institution of roles. Also, third-party hearing officers
administration will make,” says higher learning can benefit from utiliz- instill tangible, objective fairness into
Eileen Brewer, a JAMS neutral and ing a hearing officer or decision-maker campus processes, especially when such
a retired state judge from Illinois. who is independent, whether the reg- firms serve only in neutral capacities
“But any rule change will have to ulations end up changing significantly and not as advocates, consultants, or
take into account recent federal or not,” says Jennifer Sambito, Client advisors.
appellate decisions, including cases Solutions Manager at JAMS. “The
from the 9th circuit, 7th Circuit and current rules require adjudicators who With a roster made up of retired
the 6th Circuit, which address the are free of bias and without conflict. attorneys, judges, and justices, JAMS
due process rights of the accused.” Having an experienced hearing officer neutrals are particularly valuable to
from outside of the institution adds a institutions, Sambito adds, “because
higher degree of impartiality.” they intricately understand the law and
To navigate this barbed thicket of know how to conduct hearings.”
concerns, more colleges are turning Hiring an external hearing officer has
to firms such as JAMS that provide other advantages, Sambito adds. Many
third-party hearing officers. The firm Title IX cases are overseen by hear-
has handled hundreds of cases for ing panels made up of an institution’s
This content was paid for and created by JAMS. The editorial staff of The Chronicle had no role in its preparation.You can also read
